Legal Matters

EEOC Issues Guidance to Employers on COVID-19 Vaccine Incentives

By Lindsay Ryan, JD Polsinelli, PC

The Equal Employment Opportunity Commission (“EEOC”) recently provided some long-awaited clarification on an employer’s ability to offer incentives to their employees for receiving COVID-19 vaccinations. This new guidance provides welcomed direction to those businesses looking to encourage workers to get vaccinated rather than adopting a mandatory vaccine policy. This article provides a summary of the EEOC’s guidance on vaccine incentives, as well as other new updates to the EEOC’s previous vaccine-related guidance. Vaccine Incentives

The EEOC identifies the following options for employers to offer their workers incentives for vaccination under the Americans with Disabilities Act (“ADA”): » Employers can offer incentives

to employees to voluntarily provide documentation or other confirmation of vaccination received from an independent third party (e.g., pharmacy, personal health care provider or public clinic). However, any information or documentation collected should be maintained confidentially under the ADA. » Employers can also offer incentives to employees for voluntarily receiving a vaccine administered by the employer or its agent, so long as the incentive is “not so substantial as to be coercive.” Although the

EEOC does not go so far as to define “substantial,” it explains that

“a very large incentive could make employees feel pressured to disclose protected medical information” when responding to the employer’s pre-vaccination medical screening questions.

Although employers can offer an employee’s family member an opportunity to be vaccinated if certain conditions are satisfied, employers cannot require family members to be vaccinated and should not offer employees incentives for family member vaccination. Confidential Medical Information

In its updated guidance, the EEOC instructs that the ADA requires an employer to maintain the confidentiality of employee medical information, including documentation or other confirmation of COVID-19 vaccination, regardless of where the employee gets vaccinated. Accordingly, while employers can require employees provide proof of vaccination (i.e., doing so is not a “disability-related inquiry”), this information must be maintained confidentially and separate and apart from the employee’s personnel file. Reasonable Accommodations

The EEOC reiterated that if an employee cannot get vaccinated because of a disability or religious belief, the employer cannot require compliance with a mandatory vaccine policy unless it can demonstrate that the individual would pose a “direct threat” to the health and safety of the employee or others in the workplace. This determination should be based on consideration of four factors previously-identified by the EEOC, and “should be based on a reasonable medical judgment that relies on the most current medical knowledge about COVID-19,” including the level of community spread, statements from the CDC and/or statements from the employee’s health care provider. The employer must also take into account the employee’s specific work environment.

If the employer determines that the

see Legal Matters...page 13

55+ and 60+ Active Adult Apartment Homes

Freedom

has come of age.

Welcome to Overture and a world of choice. Meet new friends and live every day to the fullest. RSVP for one of our Events Today!

Mix & Mingle Social Hours

Arboretum: Every Thursday 4:00 – 6:00 PM at Brio Tuscan Grille, 10000 Research Blvd., Austin, TX 78759

Domain: Every Thursday 4 pm – 6 pm at Overture Domain

ARBORETUM

Visit Our Leasing Showroom Today!

512-640-0139 OvertureArboretum.com

9901 N. Capital of Texas Highway, Suite 220, Austin, TX 78759

DOMAIN

Now Open – Lease Today!

512-714-3143 OvertureDomain.com

3100 Kramer Ln., Austin, TX 78758